Posted
by
ScuttleMonkey
on Friday May 29, 2009 @04:27PM
from the yes-but-does-she-know-what-she-is-talking-about dept.

Hugh Pickens writes "Thomas O'Toole writes that President Obama's choice for Associate Supreme Court Justice, Sonia Sotomayor, authored several cyberlaw opinions regarding online contracting law, domain names, and computer privacy while on the Second Circuit. Judge Sotomayor wrote the court's 2002 opinion in Specht v. Netscape Communications Corp., an important online contracting case. In Specht, the Second Circuit declined to enforce contract terms (PDF) that were available behind a hyperlink that could only be seen by scrolling down on a Web page. 'We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms,' wrote Sotomayor. Judge Sotomayor wrote an opinion in a domain name case, Storey v. Cello Holdings LLC in 2003 that held that an adverse outcome in an administrative proceeding under the Uniform Domain Name Dispute Resolution Policy did not preclude a later-initiated federal suit (PDF) brought under the Anticybersquatting Consumer Protection Act (ACPA). In Leventhal v. Knapek, a privacy case, Judge Sotomayor wrote for the Second Circuit that New York state agency officials and investigators did not violate a state employee's Fourth Amendment rights when they searched the contents of his office computer (PDF) for evidence of unauthorized use of state equipment. While none of these cases may mean much as far as what Judge Sotomayor will do as an Associate Supreme Court Justice 'if confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court,' writes O'Toole."

What did you say? I was too busy surfing the information superhighway for info on the long tail using podcast-enabled Web 2.0 productivity enhancers while blogging and tweeting in the cloud. LOLWUT. THIS. FIXED. AMIRITE? ^_^

Sometimes I wish the internet would disappear. Excuse me, I mean that it should DIE IN A FIRE.

I disagree. There are many kinds of nerds. It's only presumed that/. is for computer nerds. But there are band nerds, civil war nerds, and even Supreme Court nerds. If you had ever met Nina Totenberg you would know I speak the truth.

Besides, it would take a Supreme Court Nerd to remind you that she's up for the position of Associate Justice, not Chief Justice as grandparent says. That position was filled by Bush's appointee John Roberts. The Chief Justice serves as the chief administrator and spokesperson for the Judicial branch, presides over the impeachment of presidents, gets automatic seniority over his or her colleagues, and has a few additional administrative responsibilities. Associate Justices just vote on cases and write opini

She's an outright constitutional nightmare [wordpress.com], chief or associate position notwithstanding. Exactly the kind of thinker who erodes the constitution at a terrifying pace. Her history as a judge contains an amazing number of constitutional misinterpretations, misrepresentations, and outright bewilderment.

Odds are excellent that's she's going to be confirmed, though; get ready to bend over for "enhanced legislation." The light in this tunnel is definitely a train.

That's a very one-sided view of Sotomayor's record on constitutional issues. I share your concerns but I think she's very much a case-by-case jurist and concluding from these cases that she's a "constitutional nightmare" is a bit extreme. Here's a much more detailed and careful rundown of her first amendment rulings [firstamendmentcenter.org] than the link you gave, which only mentions the infamous "douchebag" decision. I agree that's a pretty sad decision in terms of student first amendment rights, but she's also got the Guiles v. Marineau case to her credit on the same issue (the difference being the latter more obviously dealt with clearly political speech). I agree Sotomayor raises cause for concern, but calling her a "constitutional nightmare" is a bit hysterical.

I agree that's a pretty sad decision in terms of student first amendment rights, but...

No, sorry, I'm not going to give her first amendment credit because she sometimes gets some parts of it right. Not to mention the fact that she fails hard in several other constitutional areas (which the blog post also points out.) Her entire job is to get all of it right all the time. It's plain English, for crying out loud:

"...shall make no law... abridging the freedom of speech"

This applies within the states via the 14th amendment's incorporation doctrine. For a judge to misunderstand that they either have to have a major head injury or be an outright traitor to their oath. How is it that I, a common person, easily understand this, and this "wise latina" (her own characterization, not mine) does not???

She definitely doesn't deserve to serve as one of the nine final arbiters of 1st amendment rights if she thinks muzzling young people's speech and opinions outside of school by enforcement actions inside of school is an appropriate use of government power. She directly creates an environment here where a person's free speech outside of school will engender thoughts (and correct ones, at that) of government punishment and intervention. The woman is a constitutional nightmare.

She's "mainstream" (i.e., "doesn't entirely get it") on the First Amendment. But none of the other 8 Justices gets it, so what is it that makes her so much of a "constitutional nightmare" in comparison? Can anyone say with a straight face that she'd be as bad as Scalia or

I don't buy it. Conventional wisdom among who? Almost no one I know - and that's quite a few people - subscribes to the idea that the US government -- at any level -- should repress speech and opinion. My impression is that is just propaganda we hear from the government itself. Who do you consider "conventional"? Old USSR expatriates? Saudi Shaikhs? Colonel Gaddafi? Sonia herself? Seriously, who can you point to that supports th

I don't buy it [that conventional wisdom is that it's a radical bomb-thrower nutcase position to hold that the government may not restrict any speech]. Conventional wisdom among who? Almost no one I know -

You must not get out much. The "falsely yelling fire in a crowded theatre" opponents, the people who believe in laws against libel and slander, people who believe that there should be penalties for false claims in advertising, people who believe that threats of violence (and not just the acts themselves) should be against the law, that it should be prohibited to advocate the positions of Al Quaida or Hamas or Nazis or Communists or anarchists or whoever the bete de jour is, that it should be prohibited to write fiction that involves children in a sexual way... It's a long list. AFAIK speech in the US (and everywhere else) has always been regulated in one way or another, the 1st Amendment notwithstanding. So yes, the 1st Amendment, as written, is an extremist position. That doesn't make it bad, but it does make it unconventional.

Why shouldn't I push for someone better than her, since she has such obvious and profound warts?

No reason, it's just that you seemed to be pushing against her, not "for" anybody. So, assuming you do have a clue, who are you pushing for?

The list of badly thought out rationalizations to prohibit free speech is indeed long, but the number of people who subscribe to them that I know is not large. Admittedly, I live in an area where even the state government has rejected the federal position on many of these issues -- we have laws *against* eminent domain, *against* federal firearms authority,

You think a state can outlaw a federal authority? Interesting...

The legal system is being driven by people in violation of the highest law in the

You know, Texas just might leave the union (with other states not far behind) in the next eight years if our nation's situation doesn't improve at the federal level. It started with FDR for sure. But honestly, power corrupts. If not for FDR, I'm sure someone else would have taken his place to forge a similar path ahead. Our nation was bound to fail as quickly as it was formed. The rise and fall of nations is part of what defines us as humanity at

You know, Texas just might leave the union (with other states not far behind) in the next eight years if our nation's situation doesn't improve at the federal level.

On the behalf of the rest of the nation; is that a promise?

Good. I wouldn't miss Texas, nor much of the South or Bible Belt. I'd be thrilled if they formed their trickle-down theocratic wonderland, and leave the rest of the US in peace. They could call themselves the United States of Backwardia.

I don't think Texas has much going for it in the constitutional sense, they kill a lot of people, they really like their religion, and to enforce it on others, etc...

To the rest of the South, and sane Texans, your more than welcome to join the rest of us. I know there are sane people over there. The generalization was for humor. Though it would be nice if all the "red state"-Limbaugh folk left the rest of us alone.

"Talk about screwing things up -- you're just repeating right wing talking points here and they're not even close to true. Read the full speech [nytimes.com] in context."

If a white man had said the same thing she did, but, in reverse with a white man making better decisions that a latin woman, he would have been crucified at least 3x by now...and immediately disqualified.

There is no "double standard", only wingnuts focusing on glittering trivialities. Sotomayor was speaking in the context of racial and sexual discrimination - something that white men have never had to deal with in this country. So your "what if I white man said the same thing" wouldn't have the same context, and thus a completely irrelevant comparison.

Most issues that come before the Court are not as clear cut as you seem to want them to be

I think most actually are, once you strip the illegal modifications that have been made to the legal system. Once the question is down to what the constitution actually says, the answer is pretty much staring us in the face, until we begin to pretend that "interstate" means "intrastate" and "reasonable" is undefined, and "make no law" means "make law", and "shall not be infringed" means "infringe all you want at e

Oh no, I get your point loud and clear. My point is twofold: (1) you confuse disagreement with idiocy or with not understanding the constitution. That is itself idiotic; what you don't seem to understand is how common law works. The fact that the only good candidates you can think of for the Court position are yourself and some guy with an English degree but no law experience whatsoever speaks volumes. (2) you don't seem to realize that your view, as admirable as it may be, is a radical fringe view that

We can't. The nomination of a Chief Justice is not in any way News for Nerds and would not fit anywhere on Slashdot except maybe the Politics section.

Just to make sure that this is directly pointed out, Sotomayor is not being nominated for Chief Justice. That would be John Roberts, who was appointed only a couple years ago, and will likely remain Chief Justice for somewhere around 20 years.

There are already like 10 threads dedicated to that exact quote. It's been talked to death, and like most things in politics, no one is going to change their minds and everyone is being driven by their own ideology. It's pointless to start a new discussion of it here.

I had really hoped that the days of open racism by those in the highest offices was a thing of the past.

So you prefer that they hide such things until after they take office? To be honest I would rather deal with a David Duke or Al Sharpton - at least they are more open about their racism and you know exactly what you are getting.

How could he cry unreasonable search on a computer that didn't belong to him? It's the property of his employer, and, unlike a case where he would be leasing it, and thereby be able to claim some contractual ownership rights, in this case it is clearly their property.

I think if there is anything resembling a reasonable search, that's it. You have no reasonable expectation of privacy on a work computer.

It's the property of his employer, and, unlike a case where he would be leasing it, and thereby be able to claim some contractual ownership rights, in this case it is clearly their property.Please note that this was not a settled issue at the time. There is some expectation of privacy for communications even on work systems -- even in the US (in Europe, IIRC, that expectation is law). Where the expectation of privacy is gone is when the employee is explicitly informed that communications are the property

I'm not going to pretend to have the legal expertise, but I can think of situations where a person's legally protected privacy extends to spaces they don't own.

Student locker: The school can search it, but not arbitrarily. The standard is "reliably believe" based on actual information that the locker needs to be searched. Not as stiff a requirement as the "probably cause" the police need to get a search warrant, but still something.

Employee locker: Employer can search it if the employee has been notified th

You're not supposed to use company equipment (yes this includes the phone) for personal use. Don't treat things that aren't yours as if they were. You do give up any privacy when you do, your web usage is probably recorded, your phone calls can be logged and yes, they would have the right to record every conversation.

Most companies specifically forbid you from using office tools for such purpose. And any company I have ever worked for was very clear that any such use was subject to monitoring, which is completely reasonable and logical.

You are way off if you think you can come into a corporate office and make personal calls with any expectation of privacy.

i would assume if my job was ever terminated people wouldn't go through my browser's history and look at all the cookies generated unless it was directly related to my work.

That's a terrible assumption. You should assume the super-opposite: that not only would that do that upon your termination, but that someone is probably assigned to

The key part of the phrase here is who hasn't lived that life. That's the context.

Now there's an understandable difference of opinion on whether the statement about reaching a "better" conclusion based on experiences similar to the plaintiff/defendant is valid, but I don't think it's racially biased in the sense of "race X is better than race Y."

I agree with her statement. You expect a rich white man who lives in the Hamptons or Bel Air, and spends his days doing nothing but politicking and playing golf to be able to hand down a just sentence on someone who comes from a completely different part of society? You expect him to fairly judge someone who is starving, homeless, and steals a loaf of bread, and (I shudder at the thought) some baby formula? He has no context or even a remote claim to empathy with that person. He exists completely outside that part of the world and society.

You expect him to be suited for telling a young woman that she has to bear the child of a man who raped her, despite never being in a situation where someone he knew/loved was raped? This is a very real possibility for this judge to have to face.

He'd be fine for passing sentences on white collar offenders, but for those who live in the ghettos, someone from the ghettos will be better suited.

On the inverse, would you expect someone starving, homeless, and bearing a child after being raped to fairly judge someone not in that circumstance?
Life experiences don't mean squat when it comes to the bench. What experiences I have in life shouldn't matter if I'm called to make a judical call on someone else; it's based on law, not feelings.

If we're going to spout off insults, the world you live in has way too many emotional nuances to even have reality.

The law 150 years ago wasn't changed due to some decisions of the SCOTUS to consider all humans, human. It was however changed by the will of the people and their legislative officials, as well as the executive branch.

The law 60 years ago wasn't changed due to the feelings of the SCOTUS either, to remove segregation. It was changed due to the unconstitutionality of the laws that were pa

The 60% figure is bogus. Of the thousands of decisions she's made, only 5 have been taken up by the Supreme Court, and of those 3 were reversed, one affirmed and one has not yet been decided. That is similar to the outcome for most appeals court judge decisions: thousands are never taken up by the Supreme court, 70% of those which are taken up are reversed, and 30% of those which are taken up are affirmed. The Supreme Court only looks at cases it seems likely to reverse. Appeals court judges decide the vast majority of cases in the same way the Supreme Court would, so the Supreme Court doesn't say anything about them, letting them stand. The vast majority of the time, the system works.

Of the thousands of decisions she's made, only 5 have been taken up by the Supreme Court, and of those 3 were reversed, one affirmed and one has not yet been decided

According to CNN's list [cnn.com] she's had eleven cases decided by the Supreme Court. Of those, eight were reversed, and of the three upheld two of them were upheld in spite of unanimous rejection of her reasoning. I'd put "got it right by accident" in the "got it wrong" category, myself, so the Supreme Court said she got it wrong 10 out of 11 times.

And it seems very likely that the Ricci case will soon make it 11 out of 12.

Well, 60% of her decisions have been overturned... some by the Supreme Court Justices she will join... so...

That figure is dramatically incorrect - read Powerline's [powerlineblog.com] take on this, certainly no friend of hers. An excerpt:

"It relates only to Sotomayor's decisions as to which a petition for a writ of certiorari was granted by the Supreme Court--a total of only five. (The overwhelming majority of such petitions are denied.) Of the five cases in which the Supreme Court granted the writ of certiorari, it reversed three. Not only is this a ridiculously small sample, the overall rate of reversal of cases in which the Supreme Court grants cert appears to be around 70 percent."

Even if you do not approve of her (I myself am neutral) that's not a good figure to quote.

It's called a dependent clause. Learn about it, says a white male (me). I've seen extreme poverty, I've lived around it, and therefore I have some understandings of it. But I don't know it the way someone who's lived it does. And I have no clue what it must be like to grow up as a female. Repeat after me, "I don't know everything."

Correct, but if you read the whole speech she is saying that her experiences and culture will bias her judgement, whether she wants it to or not. I tend to disagree with this ideal; if you can't be impartial and disconnect yourself from your own experiences, then maybe you shouldn't be a Supreme Court Justice.

I understand where you're coming from and it is a fair point. However, the Supreme Court often has to decide on constitutional issues that go back to equality and freedom. For someone who hasn't experienced racism or sexism, their opinion on how a given action affects the equality and freedom of a person is simply different than a person who has experienced those two things. It's a "soft" issue and one that you can't quantify impartially and objectively.

I understand where you're coming from and it is a fair point. However, the Supreme Court often has to decide on constitutional issues that go back to equality and freedom. For someone who hasn't experienced racism or sexism, their opinion on how a given action affects the equality and freedom of a person is simply different than a person who has experienced those two things. It's a "soft" issue and one that you can't quantify impartially and objectively.

Now, that doesn't mean you should look for racism and sexism where it doesn't exist. But I don't think that's the issue here.

Constitutional issues aren't so hard. They boil down to this: what part of "shall not be infringed" is difficult to understand? The rest is pretty simple, too. The Founders talked about "papers and effects" and in the digital age, that also includes things like hard drives and e-mails and there is no honest reason to presume otherwise. I know that sounds facetious but I assure you, it can be that simple. It's just that there are multiple vested interests who need all of the unnecessary complexity in o

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.http://www.brianmclaren.net [brianmclaren.net]

I believe what she's trying to put across here is that a person who grew up as a poor minority woman is more likely to reach a fair conclusion than an old money white male would. Specifically, I think she's referring here to questions about those issues: poverty and discrimination.

It's equivalent to saying "I think an IT expert turned judge would be more likely to reach a fair decision in technology cases than an a judge that doesn't know how to send email would".

I believe what she's trying to put across here is that a person who grew up as a poor minority woman is more likely to reach a fair conclusion than an old money white male would.

Indeed she was trying to say exactly that, and that is exactly bullshit.

How can you presume to know what experiences even someone who grew up around money had? Perhaps they had parents who forced them to toil, or by other means still instilled an excellent value of fairness. Do you not think even people with money face many of the

How can you presume to know what experiences even someone who grew up around money had?

I can. I grew up around them, as that's who my dad worked for. In general, the most horrific bunch of hideous, unhinged zombies I'll ever have the pleasure to meet. No skills, no manners, no intelligence (no need, really, in this world, it's all about connections), and zero idea of how 99.99% of their fellow humans live.

Not that it should be a requirement for rich people to be cognizant of how everybody else gets along, but insularity breeds contempt, so it's on them.

In short, rich white people* are fucking clueless, and I've certainly don't want some freak oligarchy being the one that calls the shots, especially when they're so woefully unprepared.

*Plenty of non-white rich assholes too. Though, to be fair, there's a certain curiosity still present in most cultures that the anglo ones I've experienced just don't have as much.

Right, because law is word so well that there is no ambiguity or variation and there is absolutely no interpretation done. Heck we might as well hire monkeys who can type into a computer to pull up the exact law that decides each case every time. No need for anyone with any experience or anything.

At least read the surrounding text where the quote was taken. If then you still feel she's biased beyond credibility so be it, but don't take the media's word for it. Of course they wouldn't blow it up to sell p

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge presiding over cases on the violation of civil rights by discrimination based on race or sex] than a white male who hasn't lived that life.

If you're going to insert your own words into a quotation, insert the proper context.

Her comments were part of a speech that discussed the ideal of impartiality and how it is an elusive goal. She was referring to a particularly bad decision made by Judge Oliver Wendell Holmes. In practice, judges from different walks of life will have different ways of seeing the world, which will, as much as they try for it not to, influence their judgmen

Excuse me? Did she say Latinas are smarter than other groups? More qualified? Or "better" in any way? No, she's saying that a Latina is likely to contribute life experience that makes for a better decision-making process than a court that's populated entirely by WASP Yale graduates.

There are many times when the needs of an institution are not served by a simple merit-based approach. For example, the leading universities could fill every freshman class if they only admitted straight-A students from high scho

Claiming you shouldn't be expected to read the parts of a contract you need to scroll to see is about like claiming you shouldn't be expected to read anything other than page 1 when reviewing a paper document.

Read the linked decision - this didn't say that you don't have to read past Page 1, it said that only informing the user of the existence of licensing terms if they scroll to the very bottom of the page doesn't make the terms binding.

Essentially, if the plugin installer used a "clickwrap" license - as explicitly stated by Sotomayor in a footnote - it could have been binding.

But instead, there was a single sentence at the bottom of the page: "Please review and agree to the terms of the Netscape SmartDownload software license agreement before downloading and using the software." Installing the plugin didn't show the license, and if you didn't scroll down past the download button, you wouldn't see anything about the license.

You should read the ruling [bna.com], it seems pretty clear to me that Sotomayor did indeed know what she's talking about and came to the correct decision.

That depends on the context. In commercial law deals with retail consumers get treated differently than deals between businesses, for instance. In a B2B transaction both sides are expected to be experienced at this and have lawyers around to check the details, but a consumer's held to a lower standard and the onus is on the business to point out anything unusual about the deal. If the business doesn't bring something to the consumer's attention, then the standard is whether an ordinary consumer (not a lawye

There's a "terms of service" link at the bottom of this page. Did you click it and review the contents before making your post? If you look now and it says you've agreed to something objectionable, will you feel bound?

Only if there was an arrow on top of your head with the word "Contract!" written on it pointing at your other hand.

On the face of it, the ruling seems incorrect. However, I'm not familiar with all the details of it. Also, the ruling happened in 2002. We can assume she has become more familiar with the Internet since then. It would be interesting to hear her take on that ruling today.

From a quick reading of the decision, this was a license *not* a contract. And instead of making people click an "I Agree" button, the license link was non-obviously tucked away. The defendants did not present sufficient reason to overturn the lower court ruling. In my non-lawyer opinion: ggod decision.

I found Kelo v. New London to be eminently correct. All it said, after all, was "Yes, the local government does have the power of eminent domain. The law giving it to them doesn't place any restrictions on it. If the people want it limited, they need to change the law to add limits. It's not the court's place to rewrite the law.".

Is she really that knowledgeable though? Some of the decisions make sense, but Specht v. Netscape Communications Corp. she ruled in favor of Specht just because the license terms were behind a hyperlink on the webpage. I feel like this is exactly like not reading the fine print on a paper document. Just because someone neglects to read the terms when they are readily available they aren't obligated to follow those terms. I'm just saying the two are very a like, but if she thinks the hyperlink is not readily

It's not whether or not it's available, it's whether an average person would scroll down, follow the link, read it, understand it, and consider it a legally binding contract. That's what a lot of contract law is about: defining what things mean so that both parties can reasonably be expected to understand and therefore be held to the meat of the contract. Right?

If you can get what you want from a web page, do you scroll down to see if there is a hyperlink going to some fine print? Before you posted, did you scroll to the bottom of this comment page to see if there was any such link?

On a paper document, the fine print comes before the place you sign. You might not read it, but you know it is there. If you want people bound by your terms, online or on paper, you don't have to make sure they read them, but it is up to you to make sure they know they are there.

In any case, there's no lack of knowledge here. She knew exactly how accessible the terms were, whether you disagree about the legal implications of that accessibility or not.

Just proves I really don't understand the progressive mind. I really wish you guys could settle what the rules are in such a way you could actually enumerate them in public. Which of course is exactly what will never happen because to speak them would give up the game as any sane person could only laugh.

Racist and sexist speech are politically incorrect, but only when the speaker is white and male. All others may proceed with their bigotted remarks; often these are deemed to be funny.

Probably because it's the majority group that generally has the power in society to enforce prejudices by denying housing, voting rights, employment, etc.

Anyways, I would like to know if she is actually racist, as evidenced by the rulings she has made? So far all I have heard is one or two statements from a talk (not a legal proceeding) a number of years ago. It's silly to base one's opinion on that, when she has gone "on the record" through her rulings countless times. If she has made racist rulings, then we don't need her on the bench.

The ruling she made on the firefighters claim that they were denied promotions because they were white looked blatantly racist to me. She's been rebuked by other federal judges for the quality of her rulings when the cases involded race. Of course, she seems to be criticized often for most aspects of here work, so this isn't conclusive, but it's a really bad sign.

Just because you don't like that a bunch of white men lost their case does not mean the law said they should win or that she misinterpreted it.

The 14th Amendment states that nobody can be denied "equal protection under the law". The fact that she ruled that it is legal for a city to decide to throw out a test on the basis of race is disturbing. Add to that her statements on how a "wise latina woman" would render a better verdict than a white male and her nomination appears troublesome. While this point has been brought up before, I think it bears repeating; imagine if someone like Scalia had said a white male would make a better justice than a lat

By "this bigot", I assume you are referring to Sotomayor? By calling her a bigot, I assume that you are referring to her comment about Latinos which has become the rallying cry of conservatives saying she's unqualified because she's "racist"?

Here's the thing I don't understand about some people (I'm just going to use your comment because it so perfectly illustrates my thought). In one way, you get smug about your obvious conservative position (highly likely that you tell people that you're not really c

1. It is logical that it is more egregious for a member of a historically dominant group (that previously denied other members of its society from voting, considered other members of its society as property, etc.) to make statements that appear to support reasons for that dominance.

2. Larry Summers is currently one of the most powerful people in the US; his comments didn't exactly torpedo his career (many people at Harvard hated him for reasons far beyond his gender comments; the latter were just the spark the kindling needed).

3. Sotomayor did not assert "there are fundamental differences between both the genders AND races[1] as if it were a settled fact." In the quote that everyone is hot and bothered about, she spoke about how her experiences that were due to her gender and ethnicity might shape her decisions. If you don't get why such experiences might matter, I ask you this- what would have happened if Frederick Douglass had been on the court for Dred Scott v. Sanford?

4. Here are some key excerpts from Sotomayor's speech:

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

5. Horrified by #4? How about Justice Alito, during his confirmation:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

I know some white males (full disclosure: I am a white male) like to pretend that we live in a race- and gender-blind society, but we don't.

> You assume she's a member of "La Raza" (a supremacist group) just because she's latina?

No, I am taking the American Bar Association's word for it. Being published in the Berkley La Raza Law Journal isn't final proof, but if ya can't trust the ABA to know basic facts about a sitting Federal Judge could somebody explain why we take their opinion on appointments seriously?

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

The Supreme Court overturned 68% of all cases it decided to hear last year (and 74% the year before that!), so she actually is below average in terms of reversals. But you're confusing appealed with heard - every decision gets appealed to the Supreme Court, if the client still has money to pay for the lawyer. She only had 1.2% of her decisions overturned, which is a far lower figure.

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

I'm not taking sides, but it should be mentioned that the Supreme Court doesn't always make the right decision either. They're all political appointees who seldom fail to please their core constituencies.

Just remember this though: the Supreme Court (and in fact the Appeals Courts) generally only agree to hear cases where they think from the filings that they're going to want to overturn the ruling. If they agree with the ruling, they generally simply refuse to hear the appeal. So just on that alone you have to expect the SC to overturn more often than not.

More interesting are two other statistics: how many of the cases she ruled on were appealed, and how many of those did the Court agree to hear? She made 232 appellate rulings, of which the Supreme Court reviewed 5 and overturned 3. Turning that into percentages, in 97.8% of her cases either the losing party couldn't find anything to justify an appeal or the Court agreed with her ruling. The Court only found reason to look at 2.2% of her rulings, and disagreed with only 1.3% of them. That's a pretty solid record.

I sure don't. Seeing my employer owns the computer, the network, and my time for 8 hours a day - they can dictate policy. If i don't agree I am free to pursue employment elsewhere. To say nothing of all the hours that paid employees waste doing their own personal stuff on work computers. (Like reading Slashdot at work, which I am doing now)